Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA028813, Bob S. Bowers, Judge.
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Ronnie Edward Johnson, Jr., was convicted by jury of the first degree murder of Charles Trice, in violation of Penal Code section 187, subdivision (a), with special circumstance findings that the murder was committed during the commission of burglary and robbery within the meaning of section 190.2, subdivision (a)(17). Defendant was found not guilty of grand theft of an automobile under section 487, subdivision (d)(1), but guilty of first degree robbery and burglary in violation of sections 211 and 459. Defendant was sentenced to life in prison without the possibility of parole for the murder, with a consecutive four-year term for the robbery conviction. Sentence on the burglary conviction was stayed pursuant to section 654.
All statutory references are to the Penal Code, unless otherwise stated.
In this timely appeal, defendant raises the following contentions: (1) the trial court’s ruling precluding evidence that the victim’s estranged lover was the actual murderer deprived defendant of his right to present a defense; (2) the trial court erred by precluding evidence that would have undermined confidence in the prosecution’s DNA evidence; (3) the prosecutor committed misconduct by presenting speculative and inadmissible character evidence and trial counsel was ineffective by failing to move to exclude it; and (4) the cumulative effect of the trial court’s evidentiary rulings and admission of the uncharged character evidence require the judgment be reversed under any standard of appellate review.
FACTS
Patrice Trice, daughter of victim Charles Trice, went to her 72-year-old father’s house in Little Rock at 9:45 p.m. on October 9, 2003. When Patrice arrived, the porch light was on, the front gate that was usually kept locked was open, as was the back gate, and her father’s car was not there. Patrice waited 20 minutes, but when her father did not return, she went to her mother’s nearby house, where she spent the night.
Because they share the same last name, we refer to Patrice and Charles by their first names. No disrespect is intended.
The next morning, Patrice returned to her father’s house, which was in the same condition as the previous night. The television in the house was on “extremely loud.” Patrice looked inside and saw her father lying on the floor with duct tape around his ankles and wrists. Fearing for her safety, Patrice called 911. Patrol deputies Richard Engels and Dale Lovvik arrived shortly thereafter. Patrice saw no indication of a forced entry into the house. Her father normally carried a wallet in his back pocket and kept a firearm with him or in his car. She later discovered her father’s firearm was missing when she moved his property from the house.
Patrice told Engels that her father was lying on the floor inside and had been duct taped. Engels and Lovvik entered the house, being careful not to disturb the scene. Engels discovered that Charles was dead, with his hands duct taped behind his back with grey tape. The house was secured until homicide investigators arrived. Engels observed no sign of forced entry.
Sergeant Shannon Laren was the homicide investigator assigned to Charles’s murder. Upon arriving at the scene, he spoke with Engels and Lovvik before obtaining a search warrant for the residence. He too saw no signs of forced entry to the residence. Laren observed Charles face down with a sleeping bag thrown over his head, and his ankles and wrists were wrapped with grey duct tape. Charles had multiple head injuries. His left rear pant pocket appeared to have been ripped down.
Laren went to a nearby location where Charles’s car had been recovered. Defendant lives less than a mile from where Charles’s car was recovered with a woman named Iris, whose residence was visible from where the car was abandoned.
Jesse Scott is the brother of Ernest Scott, who was jointly charged with defendant with Charles’s murder, but whose trial was severed. In December 2003, before Christmas, defendant went to Big Bear with Jesse and Jesse’s two young nephews. Defendant told Jesse that he and Ernest were present on the night of Charles’s murder. They went to the door to buy “weed” from Charles, as they had done previously. Defendant struck Charles while he was in a chair, using his hand or a gun, causing Charles to fall to the floor. Defendant said he put Charles back in the chair, but hit him again, causing him to fall. According to defendant, he kicked Charles, who was making noises, so they put duct tape over his mouth. Defendant was wearing boots, which he later tried to burn. They took pills, weed, money, and a pistol from Charles. Defendant told Jesse the murder was a contract killing set up by Charles’s son or stepson, Shane, over insurance. Defendant and Ernest were selected because they were the only ones tough enough for the job. Defendant told Ernest they better kill Charles because he knew who they were and could identify them.
Because Jesse and Ernest share the same last name, we refer to each by their first names.
After the conversation with defendant about the murder, Jesse called Laren out of fear because someone was at his sister’s house with guns. Laren tape recorded Jesse’s phone conversation. Jesse told Laren about the statements made by defendant on the way to Big Bear. Jesse said defendant told him that Charles was tied with his hands behind his back with tape and something was put around Charles’s neck because he would not stop yelling. He also said Ernest told defendant he better kill Charles because he will tell who did it.
A few days after the call to Laren, Jesse was interviewed at the station. Laren told Jesse some people were saying he was a suspect. Jesse became very angry when asked to submit a DNA sample, but he did provide one.
One week before the murder, Anton James was in a car with defendant and Ernest, who were talking about robbing Charles. Defendant said he “got a lick,” meaning a robbery, involving Charles. Anton heard about Charles’s murder about one week after it occurred. He later told his father, Hassen James, about the conversation he overheard. Anton’s mother is Diane White, also known as Cole, who was the subject of a search warrant.
Again, due to their common surnames, we refer to Anton and Hassen by their first names.
Defendant’s first contention on appeal is that the trial court erred by precluding evidence tending to show Cole’s involvement in Charles’s murder.
Hassen was a close friend of Charles. He learned of his murder from Anton. About one week before the murder, defendant and Ernest asked Hassen for duct tape. Defendant was the one who made the request. He gave them a roll of grey duct tape, which was never returned.
After Laren spoke with Anton, Hassen, and Jesse, he arrested defendant. A search was conducted of defendant’s house at the time of his arrest. None of the property taken from Charles was recovered in the search. Shoes were seized and compared to the footprints at the scene and also tested for blood. There were no matches.
Criminalist Stephan Schliebe examined the duct tape from the victim and compared it to new duct tape of the same brand. In his opinion, the three pieces of duct tape removed from the victim were once on a single roll, as the tear patterns and markings matched. The ankle ligature was the first removed from the roll of tape.
After defendant was arrested, he was given a can of Sprite to drink, for the purpose of obtaining a sample of his DNA. Laren instructed the crime lab to compare DNA from the duct tape with samples from defendant. Pursuant to a court order, Laren also obtained oral swabs from defendant for DNA testing.
Criminalist Kari Yoshida did a DNA analysis of duct tape found at the scene of the murder. She identified defendant’s DNA on the tape. Defendant’s unique DNA is found in 1 out of 1.7 quintillion people. Bloodstains from carpet in the house were from Charles. She detected no contamination in the DNA extraction.
A quintillion is “a ten followed by 18 zeroes.”
The coroner determined the cause of Charles’s death was asphyxia, due to neck compression with blunt force trauma to the head as a contributing factor.
Anton, Hassen, and Jesse all testified at defendant’s preliminary hearing in November 2004. Defendant was in custody at the time with Ernest. Laren arranged for defendant and Ernest to be seated on a bench together in the booking area of the inmate reception center, so their conversation could be recorded. During that recorded conversation, defendant admitted to Ernest that he had said something about the murder to Jesse on the way to Big Bear, but he had not mentioned Ernest’s involvement. Defendant said someone was in court to see who “got on the stand,” and that person was waiting for defendant “to give him a word.” Defendant told the person, “Nah, don’t trip. I gonna do this my damn self.” Defendant said if he got out of this by some kind of miracle, “All hell gonna break loose.”
DEFENSE
While working as a deputy sheriff on December 31, 2003, Engels spoke to Hassen, who told him Ernest was bragging about the murder. Hassen said he received this information from his son, Anton. He said Charles had been beaten and smothered. He provided no information on defendant. However, in a subsequent conversation, Hassen said defendant and Ernest were involved in the murder.
In Jesse’s first conversation with Laren, he said he thought defendant and Ernest first tried to get in through a window at Charles’s house. In the follow-up conversation, he said they were let in by Charles. Jesse was confused about the date of the conversation. Jesse did say that defendant told him the last kick felt like it went through Charles’s head.
Four pairs of defendant’s shoes were booked into evidence. Yoshida’s examination of the shoes did not result in the detection of blood.
DISCUSSION
I
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY EXCLUDING EVIDENCE OF THIRD PARTY CULPABILITY
Defendant argues the trial court excluded “very strong evidence” that Cole, Charles’s former live-in girlfriend, was responsible for his murder. He contends the ruling deprived him of his right to present a defense, in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
A. The Offer of Proof
According to an offer of proof by defense counsel, Cole lived with Charles. About six weeks before the murder, Charles and Cole argued while in a vehicle. Charles ordered Cole out, but she said he would have to kill her to get her out. Charles struck Cole in the head with a revolver and threatened to “pop [her] right here.” Charles put the gun to her cheek. Cole said, “I’ll get your black ass.” She also said “you’re going to get yours in a couple days.”
After the incident, and up until five days before the murder, Cole frequently said she was tired of Charles and twice said she would kill him. Cole said she was tired of Charles touching her in the wrong way and was going to have her people take care of him. She later said she was tired and was going to kill Charles and take his car and his money. When Charles was killed, his car was taken and a flannel shirt and King Cobra beer can were found nearby. King Cobra was Cole’s favorite beer, and she often wore flannel shirts.
Defense counsel further supported introduction of the evidence with a declaration Laren had prepared in support of a search warrant for Cole’s phone records. In the application for the search warrant, Laren expressed his opinion that Cole was involved in Charles’s murder because she knew details of the murder and her fingerprint was recovered from a plastic candy holder at the crime scene next to Charles’s body. A witness reported that shortly before the murder, Cole asked him to purchase duct tape.
Defense counsel also represented that Cole asked to retrieve certain Halloween items from Charles’s residence after the murder, which was significant because of the location of her fingerprint on the candy holder in Charles’s residence. Also, Laren determined the pattern on the sole of her shoe was similar to a shoe pattern found at the crime scene.
B. Standard of Review and Admission of Evidence of Third Party Guilt
“We review the trial court’s ruling for abuse of discretion. (People v. Robinson [(2005)] 37 Cal.4th [592,] 625.)” (People v. Prince (2007) 40 Cal.4th 1179, 1242.) “‘To be admissible, the third party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. As this court observed in [People v.] Mendez [(1924) 193 Cal. 39], evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ (People v. Hall [(1986)] 41 Cal.3d [826,] 833.) ‘[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (§ 352).’ (People v. Hall, supra, 41 Cal.3d at p. 834.)” (People v. Harris (2005) 37 Cal.4th 310, 340.) “‘[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ (People v. Hall [, supra, ] 41 Cal.3d [at p.] 833; see People v. Panah (2005) 35 Cal.4th 395, 481.)” (People v. Geier (2007) 41 Cal.4th 555, 581.)
Applying the applicable deferential standard of review, we hold the trial court did not abuse its discretion in ruling that the offer of proof as to the purported guilt of Cole was insufficient to raise a reasonable doubt as to defendant’s involvement in Charles’s murder. Cole’s threats to kill Charles are insufficient to satisfy the test for admissibility established by the California Supreme Court, as at most they establish a motive. The trial court could reasonably find that Cole’s fingerprint at the scene of the murder on a candy holder at the crime scene was of no significance, in that Cole had lived at the residence according to the offer of proof and there is no indication that the item containing the fingerprint had anything to do with the killing. Had there been no explanation for why Cole’s fingerprint would be expected to be found in Charles’s home, its presence would be meaningful. But the mere presence of an occupant’s fingerprint on a mundane item inside a home where a crime is committed says nothing about the occupant’s involvement in that crime.
The other facts relied upon by defendant did not compel admission of evidence regarding Cole. The flannel shirt, beer, and footprint referred to by defense counsel in the offer of proof were never connected in any way to Cole or the murder. Similarly, Laren’s opinion in the search warrant affidavit that Cole knew facts that only could have been provided by someone who was present at the murder was fraught with problems of admissibility. Laren’s opinion, in and of itself, would certainly not be admissible at a trial. Moreover, the offer of proof provided no clue as to what facts Cole purportedly knew that would have placed her at the scene of the murder.
The trial court carefully reviewed the pertinent law before ruling. It’s determination that the evidence did not meet the standard for admissibility was not an abuse of discretion.
II
THE SCOPE OF CROSS-EXAMINATION OF CRIMINALIST YOSHIDA
Defendant next argues the trial court’s restrictions on cross-examination of criminalist Yoshida violated his right to confront witnesses and to present a defense, under the Sixth and Fourteenth Amendments. Specifically, defendant contends he was entitled to cross-examine Yoshida regarding nine incidents of contamination—two involving Yoshida in other cases—that lead to faulty DNA results referred to as “unexpected results.” Defendant contends the unexpected results cast doubt on Yoshida’s testimony that the laboratory controls were sufficient to insure no contamination occurred and also whether cross-contamination affected the samples in this case.
A. The DNA Hearings
Prior to trial, defendant sought laboratory error rates for DNA testing in the sheriff’s lab. The prosecutor noted there was no defense objection to admission of the DNA evidence and defendant had been provided with the error rates for three months before and three months after the analysis in this case. The prosecutor agreed that errors (“unexpected results”) by Yoshida were discoverable, but objected to discovery of other unexpected results in the sheriff’s lab. After conferring with defense counsel in camera, the trial court ordered the prosecution to disclose the lab error rates in connection with Yoshida from the time of her employment with the sheriff’s department until the present. Defense counsel said, “That’s agreeable to the defense, Your Honor.” Discovery was provided of all the validation studies regarding the sheriff’s lab as far as certification of the lab and the policies and procedures in place to protect against contamination of DNA results.
Yoshida testified at trial regarding her qualifications and duties as a senior criminalist in the biology section of the Sheriff’s Scientific Services Bureau. She had performed approximately 100 tests for the presence of DNA and comparison. She described the controls used in the sheriff’s lab, including the use of protective equipment, clean surfaces, positive and negative controls, proficiency tests every six months, the applicable Federal Bureau of Investigation (FBI) standards, and the guidelines suggested by other forensic associations. Guidelines establish a conventional way of doing forensic analysis, and if not followed, may result in contamination or suggest a bias in the process.
Yoshida received duct tape from Charles’s wrists and ankles from the coroner, packed in two separate boxes which she marked and identified. Before Yoshida conducted her DNA analysis, the duct tape was sent to another section of the lab for fingerprinting. Yoshida wanted to be present for the fingerprinting, but it was performed in her absence. When the duct tape evidence was returned from fingerprinting, Yoshida realized the two pieces of duct tape had been switched and were individually placed in the wrong box. Yoshida noted the discrepancy, but it did not affect her testing or result in contamination. The tape came back with black powder from the fingerprinting technique. She swabbed the tape segments and the can of Sprite, keeping open only one tube at a time. There was no chance the DNA sample from the Sprite can contaminated the duct tape. The fingerprint analyst could not have contaminated whatever DNA was on the duct tape, as he had no access to defendant’s DNA samples from the Sprite can or the oral swab. In Yoshida’s opinion, whatever DNA was on the pieces of tape was not contaminated by an outside source.
Yoshida obtained sufficient DNA from the wrist tape to get a profile, which matched defendant’s DNA profile obtained from the can of Sprite. She verified the identification through defendant’s DNA swab.
Defense counsel asked the trial court for leave to conduct broad cross-examination of Yoshida, including the unexpected results in other cases. Although Yoshida testified there was no risk of contamination, defense counsel argued Yoshida did acknowledge mistakes. Defense counsel told the trial court he would establish that the National Academy of Science guidelines prohibit extraction of DNA from the reference sample and evidence sample at the same time. Given the “astronomical” numbers of the likelihood of a match in this case, defense counsel asked the court to allow him to ask Yoshida about the unexpected results. The court rejected the argument, as there were no unexpected results in this case. Defense counsel said Yoshida did not follow the manual that came with the DNA testing kit, meaning she did not follow proper procedures. The court left open the possibility of another sidebar conference if further cross-examination by the defense raised additional issues.
As cross-examination continued, Yoshida testified she did the DNA extraction on the Sprite can and oral swab from defendant on different days. The extraction from the Sprite can, however, was done on the same day as the duct tape extractions. She attempted to extract DNA from 19 evidence samples. The tube used in connection with each extraction was closed as another was opened during the testing process. Yoshida testified there are built in procedures to catch contamination.
Yoshida used testing kits supplied by Applied Biosciences in the procedure. The kits come with a protocol for use, which is optimized for the sheriff’s lab and need not be expressly followed. The protocol recommends not performing analysis of reference and evidence samples at the same time. The National Research Council makes the same recommendation. This recommendation has now been adopted in the lab. Yoshida’s practice in 2005 complied with her lab’s protocol at that time.
On redirect examination, Yoshida testified that DNA could be transferred from one item to another, but not all of the DNA would be transferred. Some DNA would remain on the original item, and the result would be DNA on both items. In Yoshida’s opinion, there was no DNA transfer between the pieces of duct tape because there was only a small amount of DNA and it was all on one piece of tape. She used a positive and negative control in conducting her DNA testing consisting of a swab from a coworker and a blank tube. Neither control indicated a contamination of the results in this case.
Defense counsel again addressed the trial court regarding the issue of contamination in two of Yoshida’s analyses. The court noted that the defense had by cross-examination raised the issue of noncompliance with proper procedures. Counsel said he did not base his argument on the fact Yoshida did extractions at the same time, but instead wanted to establish that even a careful analyst could make mistakes. Counsel argued he was not making his request based on a failure of Yoshida to follow protocol; instead, he wanted to inquire about two errors she made. The court denied further cross-examination.
Defense counsel made an offer of proof that on February 24, 2004, Yoshida had an unexpected result in a DNA test in that an unknown male profile showed up in a quality control sample where only females were used. Also, on October 19, 2004, there was contamination of a forensic unknown with an analyst’s DNA. According to defense counsel, these two tests establish that even the most diligent person is going to make mistakes. The trial court found those matters irrelevant because they had nothing to do with defendant’s case, and defense counsel had already established the protocol used.
B. Forfeiture
Defendant asked the trial court to permit cross-examination of Yoshida as to the two incidents of unexpected results during DNA analysis she performed. As to those two tests, the issue of the scope of cross-examination has been preserved for appeal. However, defendant’s argument on appeal that he was entitled to cross-examine Yoshida on nine incidents—seven of which did not involve Yoshida—is forfeited to the extent the seven other instances were not raised in the trial court. (People v. Geier, supra, 41 Cal.4th at pp. 623-624 [specific objection to DNA evidence is required in order to preserve the issue on appeal].)
C. The Scope of Cross-Examination
“In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal in the absence of an abuse of that discretion. [Citations.] This discretion is not, however, unlimited, especially when its exercise hampers the ability of the defense to present evidence. While the trial judge has broad discretion to control the ultimate scope of cross-examination, wide latitude should be given to cross-examination designed to test the credibility of a prosecution witness in a criminal case. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 771, 816.) The trial court has discretion to limit cross-examination about forensic techniques on relevance grounds. (People v. Roybal (1998) 19 Cal.4th 481, 511.) Whether a defendant has “presented an adequate foundation to establish the relevance of this line of questioning lies within the trial court’s broad discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1175.)” (People v. Cornwell (2005) 37 Cal.4th 50, 81.)
While there is a Sixth Amendment right to cross-examine witnesses (Davis v. Alaska (1974) 415 U.S. 308, 316-317), the Confrontation Clause does not prevent “a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) Instead, the Confrontation Clause “‘guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ [Citation.]” (Id. at p. 679.)
Applying these standards, we hold the trial court did not abuse its discretion in excluding cross-examination of Yoshida on the two tests with unexpected results. Yoshida was subject to extensive cross-examination regarding her analysis. Defendant demonstrated through cross-examination of Yoshida that the duct tape from Charles’s wrists and ankles was switched during the fingerprinting process, which reflected sloppiness in the handling of evidence. The jury was aware that Yoshida had asked to be present during the fingerprint process, but it was done in her absence. Yoshida also testified the DNA extraction from the Sprite can was performed at the same time as the extraction from the tape, a procedure disapproved of by some experts and manufacturers of DNA testing kits. In fact, Yoshida testified the sheriff’s lab had now adopted that protocol in DNA testing. Thus, as the court observed, defendant had ample opportunity to raise issues regarding the DNA analysis in this case.
It bears emphasis that defendant has never challenged the admissibility of the DNA results in this case. The trial court reasonably considered the absence of any evidence of contamination in this proceeding as a basis for precluding additional cross-examination on tests that were not related to defendant. Introduction of evidence of unexpected results in other tests carried the potential to confuse the jury and consume an undue amount of time. The trial court could reasonably conclude that whatever unexpected results occurred in two other cases were irrelevant in a trial where there was no evidence of contamination.
D. Harmless Error
Assuming the trial court erred in limiting cross-examination, the error was no doubt harmless. As noted above, defendant did not object to admission of the DNA evidence at trial, and he was afforded the opportunity for extensive cross-examination of Yoshida. There was no evidence of contamination in the DNA analysis performed by Yoshida on the duct tape. Abundant other evidence of guilt is found in defendant’s tape recorded conversation with Ernest, in which he admitted telling Jesse about his role in the murder. His statement regarding taking care of matters if he somehow got out of this situation reflected a consciousness of guilt. Defendant obtained duct tape before the murder, which was used on the victim. Defendant also spoke of doing a “lick” on Charles prior to the murder. No affirmative defense was presented at trial. Given the overwhelming evidence of defendant’s guilt, any error in excluding one marginal area of cross-examination was harmless. (Chapman v. California (1967) 386 U.S. 18, 24.)
III
THE PROSECUTOR DID NOT COMMIT MISCONDUCT
Defendant next contends the prosecutor committed prejudicial misconduct by (1) introducing speculative and prejudicial character evidence of alleged threats against trial witnesses and (2) presenting the tape recording of Jesse’s telephone conversation with Laren under the guise of a prior consistent statement. Recognizing that no objection was made in the trial court on the ground of prosecutorial misconduct, defendant argues an objection would have been futile and was therefore excused. Defendant further argues if an objection was not excused on futility grounds, defense counsel was constitutionally inadequate for failing to object. We conclude the issue was forfeited by failure to object, the prosecutor did not commit misconduct, and defendant has not established a denial of his constitutional right to effective assistance of trial counsel.
A. Defendant’s Claims of Misconduct
1. Defendant’s Tape-Recorded Conversation
First, defendant finds misconduct in the prosecutor’s questioning of Laren regarding the tape-recorded conversation between defendant and Ernest. The prosecutor twice attempted to ask Laren about whether defendant threatened witnesses. Objections were made on the grounds of lack of foundation, hearsay, and relevance; without specifying a ground, the trial court sustained the defense objections to both questions. At a sidebar conference, the prosecutor clarified he was referring to the surreptitiously recorded conversation in which defendant said someone was monitoring the proceedings to see who testified, and if defendant gets out this, he was going to take care of it himself. Defense counsel said the only person who felt threatened was Jesse, but he had been threatened by persons other than defendant.
The trial court allowed the prosecutor to proceed with questioning on the subject. When the prosecutor again attempted to question Laren regarding threats, defense counsel tendered another objection to the prosecutor’s question relying on the “best evidence rule.” Following this objection, the trial court ruled the prosecutor could play the recording to the jury. The jury thereafter heard defendant’s recorded voice discuss the presence of a person in court to see who testified, and that if he got out of this “by some miracle” then “all hell gonna break loose” and he would take care of it himself.
2. Jesse’s Tape-recorded Telephone Call to Laren
Second, defendant argues the tape recording made of Laren’s initial phone conversation with Jesse should not have been played to the jury, as it did not qualify as a prior consistent statement. According to defendant, Jesse’s initial phone call, subsequent interview, and trial testimony were essentially consistent. The trial court allowed the taped phone conversation to be heard by the jury. In that call, Jesse describes his fear for himself and his family, and provides information regarding defendant’s admission to the murder.
B. The Standard of Prosecutorial Misconduct
Prosecutorial misconduct exists where the trial is infected to the extent the conviction is a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) Prosecutorial misconduct under state law exists if the prosecutor uses deceptive or reprehensible means to persuade the court or jury. (Ibid.; People v. Samayoa (1997) 15 Cal.4th 795, 841.)
“A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. (People v. Ayala [(2000)] 23 Cal.4th 225, 284.) In this case, a timely objection and request for admonition would have cured any resulting harm. (See People v. Farnam (2002) 28 Cal.4th 107, 167.) Defendant’s claims regarding the conduct he did not object to at trial are therefore forfeited on appeal.” (People v. Thornton (2007) 41 Cal.4th 391, 454)
Citing the decision in People v. Hill, supra, 17 Cal.4th at pages 820-821, defendant argues no objection was necessary to preserve the issue for appeal because an objection would have been futile and the errors could not be cured by an admonition to the jury. To the contrary, there is nothing in the record to indicate that an objection would have been futile or that a request for admonition would be ineffective. The trial court considered all defense objections, sustaining some, overruling others. Defendant has forfeited his prosecutorial misconduct claims. In any event, as discussed below, the contentions fail on the merits.
C. There Was No Prosecutorial Misconduct
1. The In-custody Statement
We reject defendant’s argument that introduction of his in custody tape-recorded conversation with Earnest was prosecutorial misconduct. Defendant admitted to Ernest that he had made statements to Jesse regarding his own involvement in Charles’s murder. He also said a person was in court to see who testified and was waiting for an indication from defendant to act on his observations. However, defendant intended to take care of the situation himself and if he was somehow able to get out of this, “All hell gonna break loose.” One permissible inference to be drawn from the totality of this conversation is that after defendant admitted his participation in Charles’s murder, he had a plan to do harm to the witnesses against him, which demonstrated a consciousness of guilt. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1246 [offer to informant to kill a witness to prevent testimony not “mere jailhouse rhetoric” and admissible show a consciousness of guilt]; People v. Edelbacher (1989) 47 Cal.3d 983, 1006 [tape recording of solicitation to murder to prevent a witness from testifying relevant to proveconsciousness of guilt and tape of jailhouse was properly admitted].)
Because defendant’s tape-recorded statement was admissible, this portion of his claim of prosecutorial misconduct necessarily fails.
2. Admission of the Tape of Jesse’s Phone Call to Laren
The prosecutor asked to admit Jesse’s tape-recorded phone call to Laren on the basis that it was a prior consistent statement. The prosecutor told the trial court the statement was admissible after defense counsel challenged Jesse’s credibility by suggesting Jesse received favorable treatment on a robbery conviction after his preliminary hearing testimony. Defense counsel objected and offered not to argue about the relevance of the robbery conviction. The prosecutor pointed out that the jury heard the evidence, and he was entitled to rebut it regardless of defense counsel’s promise. The trial court permitted the recording to be played to the jury.
After Jesse’s direct examination, in which he testified to the content of defendant’s statements admitting involvement in Charles’s murder, he was impeached on cross-examination with a prior felony conviction for sodomy. Defense counsel also established that Jesse had been convicted of robbery after he testified at defendant’s preliminary hearing and had spent nine months in jail. Jesse told his public defender he was going to be a witness in an important murder case. Jesse was also impeached with his preliminary hearing testimony that he did not remember if defendant had told him that Charles let them in the house. He had told Laren in the interview at the station that he was not told what was taken from Charles, which was contrary to his trial testimony. Defense counsel also established that Jesse was very angry when asked to take a DNA test.
The trial court did not err in admitting Jesse’s phone conversation with Laren, in which he implicated defendant for the first time in Charles’s murder, as a prior consistent statement under Evidence Code section 791. “A prior consistent statement is admissible as an exception to the hearsay rule if it is offered after admission into evidence of an inconsistent statement used to attack the witness’s credibility and the consistent statement was made before the inconsistent statement, or when there is an express or implied charge that the witness’s testimony was recently fabricated or influenced by bias or improper motive, and the statement was made before the fabrication, bias, or improper motive.” (People v. Kennedy (2005) 36 Cal.4th 595, 614.)
“Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:
Jesse’s conversation with Laren over the phone was admissible under subdivisions (a) and (b) of Evidence Code section 791. First, Jesse was impeached with inconsistent statements at trial, including his statement to Laren that he did not know what property was taken from Charles and his preliminary hearing testimony regarding whether Charles had let his assailants into the house. Second, defense counsel suggested through questioning that Jesse’s testimony was biased or influenced by a lenient disposition on his robbery conviction after the preliminary hearing. On these bases, the trial court did not err in admitting the prior consistent statements contained in Jesse’s initial phone call to Laren.
The trial court did not abuse its discretion by admitting the prior consistent statements, even though defense counsel told the court he did not intend to argue that Jesse was biased due to the robbery disposition. As the prosecutor argued below, the jury heard the impeaching evidence and could consider it, regardless of what defense counsel chose to argue. The prosecution was entitled to bolster Jesse’s credibility with his prior consistent statements in the recorded telephone call. The foundation for admission having been established, there was no prosecutorial misconduct at trial.
D. Ineffective Assistance of Counsel
As we have held that the evidence detailed above was properly admitted, there is no basis for a finding of a denial of effective assistance of counsel for failure to object on the ground of prosecutorial misconduct. Trial counsel is not required to make meritless objections.
IV
THERE WAS NO CUMULATIVE ERROR
Defendant finally argues that the cumulative effective of the trial errors requires reversal of the judgment. “We disagree. We have either rejected his claims or concluded any assumed error to be nonprejudicial on an individual basis. The assumed errors are no more compelling when considered together.” (People v. Avila (2006) 38 Cal.4th 491, 615.)
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.
“(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or
“(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.” (Evid. Code, § 791.)